In CRL.MC No. 5076 of 2018-KER HC- Viability of quashing proceedings involving sexual offences on ground of compromise revolves around facts & circumstances of each case, however, grave, heinous & gruesome offences shall never be subject matter of compromise: Kerala HC lays down parameters to handle such cases
Justice Kauser Edappagath [24-05-2023]

Read Order:VISHNU AND ORS Vs. STATE OF KERALA
Tulip Kanth
Ernakulam, May 27, 2023: While considering the issue whether criminal proceedings involving non-compoundable sexual offences against women and children be quashed upon a compromise between the accused and the victim, invoking section 482 of the Code of Criminal Procedure, the Kerala High Court has opined that no straitjacket formula can be formulated & every case must be decided based on its peculiar facts.
Justice Kauser Edappagath was of the opinion that where the High Court has such facts on record which clearly exhibit that the criminal prosecution will result in greater injustice to the victim, its closure would only promote her well-being and the possibility of a conviction is remote, it can adopt a pragmatic approach and very well decide to quash such proceeding upon a compromise after taking into account all the relevant facts and circumstances of the particular case including the nature, magnitude, consequences of the crime and genuineness of the compromise.
“ These are the broad principles to be borne in mind while considering the plea to quash criminal proceedings involving non-compoundable sexual offences based on compromise. However, every case is unique and must be decided based on its peculiar facts. The viability of quashing a criminal proceeding on the ground that the accused and the sexual assault victim settled the dispute revolves ultimately around the facts and circumstances of each case, and no straitjacket formula can be formulated”, the Court asserted.
Referring to various precedents, the Bench concluded that though the High Court should not normally interfere with the investigation/ criminal proceedings involving sexual offences against women and children only on the ground of settlement, it is not completely foreclosed in exercising its extraordinary power under section 482 of Cr. P.C or Article 226 of the Constitution to quash such proceedings in ‘extraordinary circumstances’ to do complete justice to the parties.
The issue must be considered from different perspectives, the pros and cons must be weighed, and a rational view must be taken. A holistic approach is called for in identifying the cases fit for compromise, the Bench held.
Outlining the clear distinction between rape and consensual sex as well as a mere breach of a promise and not fulfilling a false promise, the Bench reiterated that in a prosecution for rape on the false promise of marriage, the crucial issue to be considered is whether the allegation indicates that the accused had given a promise to the victim to marry, which at the inception was false and based on which the victim was induced into a sexual relationship.
In cases pertaining to minors, the Bench held,“ Thus, while dealing with the petitions moved by the parent or guardian of the sexual assault victims to quash the criminal proceedings on the ground of compromise, the court must consider whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether continuance of the proceedings against the accused and the participation of the minor victim in that proceedings would adversely affect the mental, physical, and emotional well-being of the latter.”
Coming to the issue of incest or intrafamilial sexual abuse of children, the Bench stated that any compromise between the victim and the offender in relation to an offence of incestuous sexual assault could not normally provide any basis for quashing the criminal proceedings.
The Bench was considering a bunch of cases which were prosecutions for rape or sexual assault on a false promise of marriage. The facts were almost similar, except for the slight difference that, in few cases at the time of the alleged incident, the victim was minor, and in the remaining cases, the victim was major. The allegations in all the cases were that the accused, by giving a false promise of marriage, had sexual intercourse with the victim, but retracted from the promise. However, later, the accused and the victim got married, and therefore, they sought to quash the proceedings on the ground of settlement.
It was made clear by the Bench that in a case where the allegation is that the accused had sexual intercourse with the victim by obtaining her consent by giving a promise of marriage and when he subsequently marries her, it really means fulfillment of the promise made by the accused to the victim. Since the accused married the victim, honouring the promise though belatedly, the basis of FIR did not survive.
In cases where the accused was already married and had children when they met the victim and the victim fell in love with the accused, knowing that he was already married. and had consensual sexual intercourse many times, the Bench opined that no question of promise to marry arose since the accused was a married man, and the victim knew well that legal marriage with him was not possible.
In the cases where the victim and the accused were in love or a live-in relationship for a long period, the Bench allowed the proceedings to be quashed as an affidavit had been sworn in by the victim stating that the entire dispute between her and the accused was amicably settled. In most cases, the victim had already married and leading a peaceful married life.
Thus, considering the divergent views on the subject by the Apex Court and High Courts across the country, the Kerala High Court gave quietus to this matter by issuing the aforementioned guidelines and observations.
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